katgrl

What were the other three reasons they listed on the NOID, other than the questions about her children?
The bulk of the new evidence you submitted demonstrates either a relationship between your wife and members of your family, or remote correspondence between you and your wife. This is the sort of evidence someone would submit to get a visa for their fiancee or spouse who is living in a foreign country. This is not the sort of evidence you would submit to prove you have a marital relationship with a spouse whom you live with. It's almost like your attorney is trying to prove you actually don't live together as husband and wife.
Please tell me this is a different attorney than the one who went to the Stokes interview with you...

Really!?!?
How does committing Immigration Fraud and helping him commit Immigration Fraud help him?
He can divorce now and remove conditions without her, not waiting 2 years for anything.
If he waits 2 years and USCIS gets wind that that are living apart it will sink his ROC...

NO, removal of conditions has nothing to do with your wedding anniversary. You are eligible to apply for removal of conditions 90 days before your 2 years green card expires, so that would be in 2013. Check your green card's expiration date when it arrives and you will be able to figure out when exactly are you eligible. I would say sometimes in February 2013.

I did not intend to pass judgement on the OP or her mother - I mentioned that to try to see if there was any other paperwork filed on her behalf - to try to figure out what happened because it is possibly relevant. The fact that the mother came on a greencard based on marriage with her son, but did not petition the daughter seems strange, but maybe it is indeed what happened. Also, you cannot extend a Visa Waiver Program entry, so perhaps this fact will help uncover something to the story - or perhaps it is simply an error. Nothing negative here, just facts and ideas to unravel the story.
AOS is not $1010 - it is $1070 for the I-485 and $420 for the I-130.

I answered you correctly in your very first post. http://www.visajourney.com/forums/topic/307501-need-help-for-i-864/page__p__4636630#entry4636630

If they did not come to the US with the intent to immigrate, then there is no "circumventing" the system if they AOS. It is legal and the law allows for this. They would not deny the AOS unless the person is inadmissible - and filing a CR-1 won't suddenly make them admissible. They will get a background check, get their relationship evaluated, and get a medical like everyone else.
OP - you have been some good advice and some bad advise in this thread. Thankfully Krikit the mod moved it to a whole forum dedicated to AOS from work, student, or tourist visas.
You said she didn't have intent when she arrived, so that's fine. One thing you really need to know is that if you file for AOS, she cannot leave the country until she gets special travel permission, called Advance Parole, or the Greencard itself (which gives travel permission by itself). You say she has a job back home, can she just quit, and is she prepared to do so? If yes, then you can marry and file AOS. You will have a mandatory interview with you both together. Read the guides up top for the forms to fill out. It costs $1070 + $420 + whatever the medical costs you. Good luck.

From your post I can tell that you have a good understanding of the process.
Yes, once your husband becomes a US citizen, you will be the IR of a USC and thus are immediately eligible to file for AOS.
That alone doesn't give you any immigration status. For that to happen you need to file for AOS. But . . . the whole student thingi becomes pretty irrelevant at that point. Sure, you won't get a new I-20 from the school, but you don't need one anyway. "Out of status" means nothing at that point. The time it takes from your school reporting to USCIS that you've taking a break is longer than it takes for USCIS to process your AOS petition. Tuition-wise, you need to be a resident of your state for at least 1 year in order to qualify for in-state tuition, so it's up to the school if they treat you as a resident once you have your Green Card or insist that you need to pay another year out-of-state tuition.
You can go back to school at any time and you can file for AOS later, but while being out of status and not having filed for AOS, you are in a twilight zone in so far that you can be detained for being out of status and put in front of an immigration judge (very unlikely, unless you get in trouble with the law), yet the I.J. would let you go as you are eligible to file for AOS, and would order you to do so ASAP.

What was the point of this post? It did nothing to bring any light to the OP's situation. You really should refrain from posting replies is you are going to be judging their motives.

Follow the guide linked. Overstay will be forgiven/irrelevant for processing your case. Just don't leave the country.
You will file a CONCURRENT I-130/I-485 package, but that package includes a lot more than just those two forms. You will get called to get your fingerprints taken, and then you will have an interview with you, your wife, and an Immigration Officer at your local office. You can apply for a temporary Employment Card, but once you get the GC, the temporary card is no longer needed. You can apply for a travel document, but you cannot use it (if you left the country before you have your GC, even with an approved travel document, you will trigger the ban) so don't bother with that form.
Good luck.

The back of the check is an endorsement area for the payee. You only ever sign the back of check when it is addressed to you, NEVER when you are the one writing it. I personally think the package will get rejected for this, but maybe not. I would go to the bank and ask them for a tutorial on how to write checks. Good luck.

Here's the deal. Preconceived intent is not allowed. Adjustment of status for an immediate relative of a US citizen is an exception rather than simply an alternative to the normal immigrant visa process. However, there have been several cases, the most significant more than two decades ago, that established that while preconceived intent is a serious negative factor, it's not sufficient on it's own to justify denial of AOS. It doesn't matter if the preconceived intent actually existed in the minds of the immigrants - USCIS can't read people's minds - it matters what evidence they have that the intent existed. But again, if preconceived intent is all they've got against them then they won't use that as a basis to deny AOS.
So, when they find evidence of preconceived intent then they look for an indication that the immigrant may have misrepresented their intent to an immigration officer at some point - during the visa interview, or at the port of entry, usually. Any statement, even if it's a canned statement on a CBP processing form, that states they do not intend to immigrate can be determined to be an intentional misrepresentation if they find evidence to the contrary.
You need to microanalyze everything that happened at the port of entry. Did they bring the documents needed for AOS with them? Is it known or is it possible that CBP or TSA found those documents? Did they sign any form or make any statement that they did not intend to immigrate, and were only coming to visit? If they were jacked around at the port of entry then it's possible they were given a statement to sign, and that statement may have included an affirmation that they do not intend to immigrate.
Unless you're absolutely certain that they don't have the two pieces of the puzzle - evidence of preconceived intent, and a statement to the contrary - then you're taking a risk by attempting to adjust their status.

Then I would say you need to request the aid of a lawyer. Your knee jerk reactions will not aid your parents in this journey.

If you couln't understand the thought process of the USCIS process, then how are you going to react at an interview. I can't and won't tell you how to cheat the process, but i will give you thoughts to think about. This is for you and your family to fiqure out how you'll will arrive at the finally solution.

She didn't overstay her visa. The visa is the entry pass to the US, the I-94 determines the authorization to stay.
If she leaves now, she will still have an overstay. If her overstay is less than 180 days, it won't trigger an automatic bar but it can still trigger the denial of a K-1 visa petition based on the assumption that it's just a means for her to immigrate to the US. They are under no obligation to issue her a visa and they are under no obligation to explain their reasons for their decision to her in detail.
If she stays and marries you, it will still look weird. Common sense dictates that a man who just got divorced will have learned his lesson. If he jumps right into the second marriage immediately afterward, the moment a woman from a foreign country is entering a period of overstay, they will, not surprisingly, have a closer look.
There is no easy way, and there's no right way to do this. Viewing at this from your personal perspective, I'd say get to know this woman a bit better, day in, day out, in normal situations and in stress situations, before you vow to spend the rest of your life with her, as you did with your first wife before. There are no guarantees in life, but marriage is, or at least should be, a big deal for anybody. You should not allow yourself to be pressured, knowingly or unknowingly, into marrying someone based on immigration concerns only.
As politely as I can state this: don't be a fool. You are apparently a smart man, so take a step back and then nine more. Only thereafter take one step forward and do this step by step. Have you ever been to Venezuela?

He will not lose his green card if the marriage was in good faith.
He can file for divorce and then file a waiver when it is time to remove conditions.
As long as the marriage was legit then there is no reason that he will have a problem removing conditions.
To the OP--let her be the one to file.

There is no visa immediately available for a spouse of a green card holder. The LPR would file the I-130 and when a green card becomes available (and your friend's student visa is still valid) they would file the I-485. When will the LPR become an USC? If they file for AOS after he is an USC, then there is a visa immediately available. If they waited until he was an USC, then they would file I-130 and I-485 together. Also, they can file the I-130 after they get married, and if he becomes an USC before the I-130 is approved they can always upgrade it to spouse of USC. That's my suggestion if it is going to be a while before he is USC.

There is no visa immediately available for a spouse of a green card holder. The LPR would file the I-130 and when a green card becomes available (and your friend's student visa is still valid) they would file the I-485. When will the LPR become an USC? If they file for AOS after he is an USC, then there is a visa immediately available. If they waited until he was an USC, then they would file I-130 and I-485 together. Also, they can file the I-130 after they get married, and if he becomes an USC before the I-130 is approved they can always upgrade it to spouse of USC. That's my suggestion if it is going to be a while before he is USC.

The rules are the rules and AOS for immediate relatives of US citizens is in the rules.
There are more ways than one to Rome, and you may have chosen the long and safe one (emphasis on choice), whereas others have chosen the shorter but more dangerous one. Life is full of choices, so don't be a party pooper if somebody who chose another route than you gets to his destination a bit earlier.

Blob18,
this would be a great time to listen and to learn.
Harpa Timsah is 100% correct and if you one day want to be able to give meaningful advise on this subject to other VJ members, I suggest you soak everything she said in thoroughly. Her contributions are spot on and I haven't seen her make a mistake yet, not even once.
The bar is triggered the moment a foreigner with overstay leaves the US. No leaving, no bar triggered.
For that very reason it has no merit to apply for an I-131 (Advance Parole). The O.P.'s wife most likely would get it approved and mailed to her, but once she leaves the US, she would trigger the bar. When she returns, the CBP officer would deny her admission to the US based on the bar, and despite the A.P. on hand.
DHS is the mother, USCIS, CBP, and ICE the children, and they don't always agree on everything. So while USCIS says: here's your AP, bon voyage, CBP will say: not my problem, I didn't give you nothin' . . . now turn around and go home.

This is incorrect. Overstay is irrelevant/forgiven for immediate relatives of US Citizens who entered with a valid visa. She does not have a ban yet because she is still in the country and did not leave. If she leaves any time before she has her GC, she will trigger that ban. Once she gets the GC, she can travel freely. I wouldn't bother filling out the I-131 because she cannot use it because of the overstay (if she does she would trigger that ban, even with an Advance Parole Document in hand). Follow the guide linked by Candian_wife and send the forms altogether to the Chicago Lockbox designated. Good luck.
Also, check out this forum:
http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

For adjustment of status, all immediate relatives are eligible after overstay, not just spouses. Of course that assumes there are no other immigration violations that would make them ineligible to adjust. I'll summarize the relevant sections of the immigration and nationality act below.
INA 245©(2)
AOS shall not be applicable to an alien other than an immediate relative as defined in section 201(b) who accepts unauthorized employment prior to filing AOS, or who has failed to maintain continuously a lawful status since entry into the United States.
INA 201(b)(2)(a)(1)
Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.
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Part of the confusion is that besides the convoluted language that the INA uses, it is also different in this case between AOS eligibility and waiver eligibility. When it's a waiver of the 3/10 year illegal presence bar, only spouses and children are eligible, not parents.
INA 212(a)(9)(B)(v)
Waiver.-The Attorney General has sole discretion to waive the illegal presence bar in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.
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So in your case, your parents are eligible to adjust status as long as you are at least 21 years old and they have no other immigration violations that would make them ineligible. But if they were to leave the USA before they become permanent residents, you would not be able to file a hardship waiver for them to return and they would be subject to the 10 year entry bar for accumulated illegal presence.
Hope that helps.

I'm speaking of an exact situation that occured with my MIL coming from the Ukraine. It's posted in this thread. She was NOT given a reason for the second denial, and she used the EXACT same paperwork a month later and was approved. If you want to pretend it doesn't happen go ahead. People post it all the time here.
I had 15 Tn's between 1992 and 2008. Did my wife's citizenship paperwork, my GC, 3 B2's for my MIL, 2 for my FIL. I daresay, when I comment on how inconsistent USCIS can be, my information is not limited.

You have a litany of potential problems.
He's from a completely different culture. Don't be surprised if you're interviewed by an East Asian IO.
He's old enough to be your father. An age difference is not contrary to most East Asian cultures, but this much of an age difference is very unusual.
You met just prior to your visa expiration, and the relationship became serious just after. Alarm bells going off.
You married only four months after meeting each other. Not much of a courtship. If his family wasn't very much involved in the wedding that will raise the bar of suspicion even higher.
Up until he was 40 years old, he'd never filed a tax return before. This raises the suspicion that he might be getting paid to help you. You said he didn't file taxes for 10 years. Presuming that wasn't the start of his working life, did he also immigrate to the US? Was his immigration through marriage to a US citizen? If so, I see the potential for a very difficult interview.
If I was an immigration attorney (or even if I played one on TV) I'd be recommending you prepare yourself for the strong possibility of a Stokes interview.

Godhelpme,
I didn't want to respond to this again, probably for the same reason Jim stayed out of it, but your case is a really weird one, starting with the way you arrived here, tried to adjust status, and adjusted every possible way to stay, including non-viable venues.
I used to do auto racing for many years as a privateer, and when you do that you need to know that speed costs money, hence everyone asks you: how fast do you want to go? I spent so much money on my hobby, I could have bought another single family home in California, and they aren't cheap here. Luckily, I retired from auto racing when I turned 50, and looking back today, it almost seems unreal. They say racing is an addiction that can only be cured by poverty. In some way, you are on a similar path.
I understand your desire to stay in the US as long as possible, but, frankly, to me it looks like you need to realize when the game is over.
An attorney's job is to assist his or her client, but the attorney has also a desire and a need to make money. You can exhaust any possible option, appeal the heck out of it, but it will only buy you time, whereas the end is certain: you'll be going home.
I seriously feel your attorney rides on your desperation to stay as long as possible, at any cost. She'll write letters and appeals as long as you write the checks. At some point, when all has been said and done that can be done, she'll say she tried everything. True. But she did it knowing that your chance of success would require a miracle from the gods themselves.
Thus, and in light that you spend silly money on this already, I would advise you to contact an expert like Laurel Scott. Spend $350 to sit down with her in person (not any of her associates!) for a whole hour and talk about your case in detail. She knows more about immigration than I and you could learn in a lifetime and is so honest that it hurts. Most importantly, she won't BS you but tell you if you have a chance or not.
You can reach her here:
http://www.scottimmi...ontent/about-us

You're a grown man in a grown man's situation. I don't want to sound mean but you have had excellent advise and it did not cost you a dime!
You have three choices
a) Listen to the lawyer who actually knows your case and see where this ends up. Let her write the letter etc.
b) Return to your home country
c) Keep posting on VJ hoping that we know the unseen and can decipher your case.
The choice is yours.